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Date: 05-21-2018

Case Style:

Patricia Theriault v. Genesis Healthcare, LLC

District of Maine Federal Courthouse - Portland, Maine

Case Number: 17-1717

Judge: Selya

Court: United States Court of Appeals for the First Circuit on appeal from the District of Maine (Cumberland County)

Plaintiff's Attorney: Guy D. Loranger and Danielle M. Campbell

Defendant's Attorney: James R. Erwin and Elizabeth B. Rao

Description: Plaintiff-appellant Patricia
Theriault bills this case as one in which the district court
ignored the teachings of the Maine Supreme Judicial Court (known
in its appellate capacity as the Law Court) and improperly relied
on the McDonnell Douglas framework, see McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), when granting her employer's motion
for summary judgment. At first blush, this billing seems to
suggest a nuanced question as to whether the McDonnell Douglas
framework is procedural (and, thus, should be applied by a federal
court when adjudicating a state-law cause of action in a diversity
case, regardless of whether the state court would apply it) or
substantive (and, thus, should not be applied by a federal court
when adjudicating a state-law cause of action in a diversity case,
so long as a state court would not apply it). See Gasperini v.
Ctr. for the Humanities, 518 U.S. 415, 427 (1996); Hanna v.
Plummer, 380 U.S. 460, 465-66 (1965). Appearances can be
deceiving, though, and the presumed need to answer this nuanced
question vanishes upon a careful reading of the Maine cases: the
district court did not rely on the McDonnell Douglas framework
but, rather, followed the prescriptions of the Law Court, went
directly to the issue of whether Theriault had made out a
cognizable claim for retaliation under state law, and determined
that she had not. See Theriault v. Genesis HealthCare LLC, No.
15-cv-530, 2017 WL 1403162, at *8 (D. Me. Apr. 19, 2017). We
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affirm, leaving the inquiry into the procedural/substantive
dichotomy for another day.
We glean the facts from the summary judgment record.
Theriault, a certified nursing assistant (CNA), began working in
1997 at RiverRidge, a nursing facility located in Kennebunk, Maine,
licensed by the Maine Department of Health and Human Services
(DHHS). The defendant, Genesis HealthCare LLC (Genesis), is the
parent company of Kennebunk Operations LLC, which owns and operates
RiverRidge. Most of the patients at RiverRidge are in assisted
living, and many suffer from neurological deficits. As a licensed
nursing facility, RiverRidge is required by law to report any
allegations of patient abuse as soon as it learns of them. See
Me. Rev. Stat. Ann. tit. 22, § 3477(1).
Theriault worked at RiverRidge alongside Cheyenne
Wagner, who was both a CNA and a certified residential medication
assistant. On November 11, 2014, Wagner approached Elizabeth
Moore, the director of human resources at RiverRidge, to complain
about Theriault peering into Wagner's purse and asking what
medications she was taking. Wagner also lamented that Theriault
had engaged in harassing behavior on Facebook. As a result of
Wagner's complaint, Theriault was reassigned to a different unit
so that the two women would not have to work together.
- 4 -
Six days later, Theriault asked Moore why her work
schedule had been changed. Moore did not mention Wagner's
complaints but simply told Theriault that employee schedules
varied based on staffing needs in particular areas. During this
conversation, Theriault griped about Wagner, expressing her view
that Wagner had been rude because Wagner had refused to discuss
personal problems while at work. Moore cautioned Theriault against
trying to engage in personal conversations in the workplace.
Theriault then approached Sarah Louise Corson, the
director of nursing at RiverRidge, to remonstrate about Wagner.
Corson responded that she had no time for a meeting and asked
Theriault to submit her grievances in writing.
Moore and Corson worried that Theriault's conflict with
Wagner might lead Wagner to leave RiverRidge. On November 20,
2014, Moore, Corson, and Robert Straznitskas (RiverRidge's
administrator) met with Wagner to discuss her concerns. Wagner
brought a handwritten note to the meeting, listing several
incidents of worrisome behavior on Theriault's part. For instance,
Wagner's note mentioned seeing Theriault grab a resident by the
front of his shirt and shake him. It also mentioned several
untoward comments allegedly made by Theriault. One time, Theriault
had asked another coworker for a gun "to handle" a difficult
resident. On another occasion, Theriault asked a pharmacy employee
if he had a baseball bat to use on a resident. Similarly, Theriault
- 5 -
once told the family of a resident that she had "a noose and a
bucket" ready for his use. Wagner reported that this statement
was very upsetting to the family.
The management team (Corson, Moore, and Straznitskas)
found Wagner's account troubling and thought that the incident in
which Theriault was said to have shaken a resident might well
amount to patient abuse.1 As required by RiverRidge policy, Corson
reported the incident to DHHS, and Theriault was immediately
suspended pending an investigation. In addition, Corson scheduled
a meeting with Theriault for the next day to discuss the insights
furnished by Wagner. According to Theriault, she was not told of
the allegations against her and assumed that she would be meeting
to discuss her grievances against Wagner.
When she showed up for the scheduled meeting, Theriault
brought with her a written summary of her concerns regarding
Wagner's workplace behavior. The summary described several
episodes in which Wagner supposedly was rude to Theriault,
including once when Theriault asked if "anything was going on that
I should know about" to which Wagner responded "no not really" in
a "very rude[]" manner. Theriault's summary also complained that,
as Wagner "walked by [Theriault,] she turned away and stuck her
1 In Maine, patient "abuse" is defined as "the infliction of
injury . . . or cruel punishment that causes or is likely to cause
physical harm or pain or mental anguish." Me. Rev. Stat. Ann.
tit. 22, § 3472(1).
- 6 -
nose up in the air." Later that same evening, Wagner responded
rudely when Theriault asked her if she was going on a break. After
Wagner returned in about twenty minutes, Theriault thought that
she was in a much more pleasant mood.2
Theriault also wrote that she had observed Wagner
texting on her cell phone "many times" while distributing
medications. Texting while distributing medications is (for
obvious reasons) considered unsafe and is prohibited by RiverRidge
Corson, Straznitskas, and a Genesis executive were in
attendance at the November 21 meeting. They perused Theriault's
written summary, but quickly turned to the allegations that had
earlier been leveled against her. Theriault acknowledged that she
may have made the three statements attributed to her by Wagner,
but insisted that they were made in jest. With respect to the
claim that she had shaken a resident, she conceded that she might
have grabbed him by the front of his shirt but only to prevent him
from falling.
Moore and Corson investigated the allegation that
Theriault had shaken the resident. They interviewed the resident
himself (who has a serious brain injury and memory loss) as well
2 Theriault now claims that this behavior led her to suspect
that Wagner was abusing drugs. Such a claim, however, comes as a
bolt from the blue: Theriault never mentioned such a suspicion to
management at any time during her tenure at RiverRidge.
- 7 -
as his roommates, but unearthed no corroboration. They also
interviewed Rosa Vasquez (a CNA), who stated that she had seen
Theriault grab the resident by the shirt and shake him during a
moment of frustration while moving the resident into his
wheelchair. Vasquez intervened, told Theriault to take a break,
and completed the transfer. She did not report the incident
contemporaneously, but told Wagner about it at a later date.
Moore and Corson found Vasquez's account to be credible
and concluded that Theriault had grabbed the resident in a "nonclinical
manner." They also concluded that she had made the three
highly inappropriate statements attributed to her by Wagner.
Citing these four findings, Moore asked the company's regional
headquarters for permission to fire Theriault. That permission
was forthcoming, and Theriault was terminated on November 25, 2014.
The DHHS subsequently conducted its own investigation into the
shaking incident and determined that no patient abuse had occurred.
Theriault did not go quietly into this bleak night.
Asserting that her dismissal was in retaliation for her complaints
against Wagner, she filed a claim with the Maine Human Rights
Commission and received a right-to-sue letter. See Me. Rev. Stat.
Ann. tit. 5, § 4612. She then proceeded to invoke diversity
jurisdiction, see 28 U.S.C. § 1332(a), and sued Genesis in Maine's
- 8 -
federal district court.3 Her complaint alleged that Genesis had
flouted the Maine Whistleblower Protection Act (WPA), Me. Rev.
Stat. Ann. tit. 26, § 833, and had defamed her. Following
extensive pretrial discovery, Genesis moved for summary judgment.
See Fed. R. Civ. P. 56(a). The district court determined that
Theriault had failed to make out genuine issues of material fact
sufficient to bring either of her causes of action to trial. See
Theriault, 2017 WL 1403162 at *9, *10.
This timely appeal ensued. In it, Theriault challenges
only the adverse judgment on her WPA claim.
"The role of summary judgment is to pierce the pleadings"
and probe the proof to ascertain whether a need for trial exists.
Kearney v. Town of Wareham, 316 F.3d 18, 21 (1st Cir. 2002). Our
review of the district court's entry of summary judgment is
plenary, and we must take the facts in the light most hospitable
to the nonmoving party, "indulging all reasonable inferences in
that party's favor." Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st
Cir. 1990). Summary judgment is appropriate when the evidence of
record "show[s] that there is no genuine issue as to any material
3 Although Genesis is the sole defendant named in this action,
it has not questioned Theriault's allegation that it should be
treated as her employer in connection with her WPA claim.
- 9 -
fact and that the moving party is entitled to judgment as a matter
of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A swing of the summary judgment axe can be averted if
the nonmoving party adduces competent evidence demonstrating the
existence of a genuine dispute about a material fact. See Murray
v. Kindred Nursing Ctrs. W. LLC, 789 F.3d 20, 25 (1st Cir. 2015).
"Such evidence must be sufficiently probative that, if it is
credited, a factfinder could resolve the case in favor of the
nonmovant." Id. An inquiring court is not obliged either "to
draw unreasonable inferences or credit bald assertions [or] empty
conclusions." Cabán Hernández v. Philip Morris USA, Inc., 486
F.3d 1, 8 (1st Cir. 2007); see Medina-Munoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
With this rudimentary backdrop in place, we turn first
to the analytic framework that governs the analysis of Theriault's
WPA retaliation claim. We then consider the merits.
A. The Analytic Framework.
Sitting in diversity jurisdiction, a district court is
obliged to apply state substantive law and federal procedural law.
See Gasperini, 518 U.S. at 427. In this case, the parties agree
that Maine law supplies the substantive rules of decision.
The WPA prohibits retaliation against an employee who
makes a "good-faith report of . . . 'a condition or practice that
would put at risk the health or safety of' any person." Murray,
- 10 -
789 F.3d at 25 (quoting Me. Rev. Stat. Ann. tit. 26, § 833(1)(B)).
Maine law confers a private right of action for a violation of
this statutory imperative. See id. To prevail on a WPA claim,
the plaintiff must demonstrate that "(1) she engaged in activity
protected by the WPA; (2) she experienced an adverse employment
action; and (3) a causal connection existed between the protected
activity and the adverse employment action." Walsh v. Town of
Millinocket, 28 A.3d 610, 616 (Me. 2011).
In the case at hand, the first two of these predicate
elements are not in dispute. Theriault's complaint that Wagner
was texting while distributing medications is plainly protected
activity in the form of a report about a "practice that would put
at risk the health or safety" of the residents, Me. Rev. Stat.
Ann. tit. 26, § 833(1)(B), and Theriault's ouster was unarguably
an adverse employment action. The battleground, then, is the third
element, that is, whether Theriault sufficiently demonstrated the
requisite causal nexus between her protected activity and her
discharge. To demonstrate a causal link sufficient to defeat a
summary judgment motion, Theriault must make a sufficient
evidentiary showing that her protected activity (her alleged
whistleblowing) "was a substantial, even though perhaps not the
only, factor motivating [her] dismissal." Caruso v. Jackson Lab.,
98 A.3d 221, 226 (Me. 2014) (quoting Walsh, 28 A.3d at 615). Put
another way, Theriault must make a sufficient evidentiary showing
- 11 -
that her protected whistleblowing activity was a but-for cause of
her dismissal. See id. at 227.
The parties hotly dispute what evidence of causation
should have been considered at the summary judgment stage.
Theriault argues that under Maine law a court, when faced with an
employer's summary judgment motion in a WPA retaliation case, may
consider only the plaintiff's evidence. Genesis takes a contrary
position, contending that the court was obliged to consider all of
the evidence (including its evidence about its reasons for
terminating Theriault) when determining whether to grant summary
judgment. Because the district court rejected Theriault's
understanding of Maine law and instead considered all of the
evidence, Theriault exhorts us to find that the court applied (at
least functionally) the McDonnell Douglas framework and thus
erred. On its own terms, Theriault's argument fails.4
4 As framed, Theriault's argument presumes that the choice of
what framework should be used to analyze a WPA retaliation claim
at the summary judgment stage is a matter of state substantive
law, not a matter of federal procedure. While it can be argued
that the McDonnell Douglas framework is procedural, see, e.g.,
Buytendorp v. Extendicare Health Servs., Inc., 498 F.3d 826, 834
(8th Cir. 2007); Snead v. Metro Prop. & Cas. Ins. Co., 237 F.3d
1080, 1094 (9th Cir. 2001), and therefore should have been invoked
by the district court when adjudicating the summary judgment
motion, Theriault has not advocated that proposition.
Consequently, she has waived any such contention, see United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990), and we express no
opinion as to whether the McDonnell Douglas framework should be
regarded as substantive or procedural.
- 12 -
Some background is helpful to put Theriault's argument
into perspective. As a general rule, federal courts employ the
McDonnell Douglas burden-shifting framework when analyzing
employment retaliation claims at the summary judgment stage. Under
that framework, the burden is on the plaintiff to make out a "prima
facie case" which requires only "the production of admissible
evidence, which, if uncontradicted, would justify a legal
conclusion of [retaliation]." Sanchez v. P.R. Oil Co., 37 F.3d
712, 719 (1st Cir. 1994). The burden of production then shifts to
the defendant to identify a legitimate reason for the adverse
employment action. See Murray, 789 F.3d at 25. Once this minimal
burden of production is satisfied, the burden reverts to the
plaintiff to show that the proffered reason was not the real reason
for the adverse employment action but, rather, was a pretext for
retaliation. See id.
In Brady v. Cumberland County, the Law Court shelved the
tripartite McDonnell Douglas burden-shifting framework in favor of
a singular inquiry: "whether the record as a whole would allow a
jury to reasonably conclude that the adverse employment action was
motivated at least in part by retaliatory intent." 126 A.3d 1145,
1158 (Me. 2015). When answering this question, Brady directs a
trial court to collapse the more intricate McDonnell Douglas
framework and, in a seamless inquiry, "recognize any evidence that
the employer had a lawful reason for the adverse action taken
- 13 -
against the employee, and any evidence that the proffered reason
is merely a pretext." Id. at 1157-58. Still, the Law Court did
not regard this change in focus as a sea change in the law. Rather,
it anticipated that "the evidence that would be presented in the
second and third stages of the McDonnell Douglas framework will
still fall within the analytical framework applicable to summary
judgment motions in WPA retaliation cases because that evidence
still bears on the allegation of causation." Id. at 1158.
The upshot is that when the Brady court shelved the
McDonnell Douglas framework, it perforce jettisoned McDonnell
Douglas's prima facie case requirement, which it criticized as
"limited in . . . effect" and "fall[ing] short of [requiring] a
body of evidence that would be sufficient to permit a finder of
fact to conclude that the employer acted unlawfully." Id. at 1155.
In its place, the court established a new, Maine-specific
retaliation paradigm. Under this Maine-specific paradigm, a
plaintiff must present evidence of causation up front, not wait
for the defendant to introduce evidence of its legitimate reason
for terminating her. See id. at 1157. Only if the plaintiff in
a WPA retaliation case satisfies this new paradigm will she be
able to survive the defendant's motion for summary judgment. See
Cormier v. Genesis Healthcare LLC, 129 A.3d 944, 948 n.2 (Me.
- 14 -
The Law Court has described this Maine-specific
retaliation paradigm as embodying a "prima facie case"
requirement. See, e.g., id. It has made pellucid, though, that
"a 'prima facie case' within the meaning of the McDonnell Douglas
analysis is different" than the "prima facie case" contemplated
under the new paradigm that it has fashioned for adjudicating WPA
retaliation cases. Brady, 126 A.3d at 1155, 1158; see Cormier,
129 A.3d at 948 n.2 (explaining that "the term 'prima facie' merely
describes the evidence that 'is sufficient to withstand a motion
for summary judgment' generally, rather than a specialized
categorization of evidence that does not directly track the three
elements of the claim" (quoting Brady, 126 A.3d 1155)).5 In the
interest of clarity, we refer throughout to the framework
articulated by Brady and its progeny as the "Maine-specific
retaliation paradigm," not as a "prima facie case" requirement.
Notwithstanding Maine's new paradigm, all roads lead to
Rome: in the final analysis, the Maine-specific retaliation
paradigm obligates the plaintiff to adduce precisely the same
quantum of proof that she would have had to adduce to defeat
summary judgment under the McDonnell Douglas framework. See Brady,
5 There is a puzzling footnote in Carnicella v. Mercy
Hospital, 168 A.3d 768, 772 n.2 (Me. 2017), which refers to the
"first of the three steps" in the analytic framework. But
Carnicella is not itself a WPA retaliation case, and in all events
the footnote is dictum. Thus, we do not attempt to decipher the
meaning of the Carnicella footnote.
- 15 -
126 A.3d at 1157-58. The proof is simply arranged in a different
way. This seems to be what the Law Court meant when it stated
that "[e]limination of the burden-shifting process does not limit
the scope of the evidence presented in summary judgment motion
practice in WPA retaliation cases, when compared to the evidence
that would be presented under the McDonnell Douglas model." Id.
at 1157. It follows that, "at the summary judgment stage in WPA
retaliation cases, the parties are held to the same standard as in
all other cases." Id. at 1158.
To be sure, Theriault resists this conclusion. She
interprets Brady to mean that a court, faced with a defendant's
summary judgment motion in a WPA retaliation case, may consider
only the plaintiff's evidence. Theriault's interpretation is
incorrect: Brady's new approach simply means that, at summary
judgment, "the parties are entitled to present evidence of the
reasons for the employer's action, but without any need to follow
the McDonnell Douglas burden-shifting structure." Id.
We now come full circle. Once Brady's Maine-specific
retaliation paradigm is properly understood, it becomes readily
evident that the court below grasped the essence of Brady and was
faithful to it, explicitly eschewing any reliance on the McDonnell
Douglas framework. See Theriault, 2017 WL 1403162, at *7 n.14.
Consistent with Brady, the court focused on whether the record,
construed in the light most favorable to Theriault, sufficed to
- 16 -
support an inference "that the adverse employment action was
motivated at least in part by protected activity." Brady, 126
A.3d at 1158. Under Brady, this was the decisive question.
Consequently, we reject Theriault's claim that the district court
applied the wrong analytic model and proceed to the substance of
the district court's determination.
B. The Merits.
Having determined that the court below did not employ
the McDonnell Douglas framework but, rather, employed the analytic
framework prescribed by the Law Court for use in WPA retaliation
cases, we turn to the merits of its summary judgment ruling.
Following an appraisal of the record as a whole, we agree with the
district court that Theriault has failed to adduce sufficient
evidence to make out a genuine issue of material fact on causation.
We explain briefly.
Theriault claims, in essence, that during the course of
RiverRidge's investigation into her alleged misconduct, its
motivations changed from legitimate to retaliatory when she
complained about Wagner's texting. Building on this foundation,
she says that this retaliatory motive prompted her firing. This
finding of causation, Theriault suggests, can be supported in three
ways. We examine her three suggestions sequentially.
To begin, Theriault argues that the close temporal
relationship between her November 21 "texting" complaint against
- 17 -
Wagner and her firing a few days later is enough, in and of itself,
to warrant an inference of causation.6 The case law repudiates
this argument: while Theriault's dismissal followed closely on the
heels of her protected activity, "that fact, standing alone, is
not enough to trigger an inference of causation" that will
withstand summary judgment. Kearney, 316 F.3d at 23. Though
temporal proximity may be sufficient to satisfy the first element
of the McDonnell Douglas framework, see Murray, 789 F.3d at 25
(citing Stanley v. Hancock Cty. Comm'rs, 846 A.2d 169, 175 (Me.
2004)), it is not sufficient, by itself, to forge a causal link
strong enough to create an inference of causation and thus satisfy
Brady's new, Maine-specific retaliation paradigm in the face of an
employer's asserted legitimate non-retaliatory reason for the
adverse employment action.
Theriault disagrees, relying principally on the Law
Court's decision in Cormier. That reliance is mislaid. In
Cormier, the Law Court determined that temporal proximity between
the protected activity and the adverse employment action could
create a triable issue of fact as to whether Cormier's employer
6 Here, the temporal relationship upon which Theriault's
argument depends is undermined to some extent by the fact that
RiverRidge suspended Theriault for her reported actions and
comments before Theriault made any complaint about Wagner's
alleged texting. For summary judgment purposes, however, we assume
that the relevant temporal relationship was between Theriault's
protected activity and her firing without regard to the timing of
her suspension.
- 18 -
knew about her protected activity. See Cormier, 129 A.3d at 951.
The Law Court went on to say, however, that the "combined effect"
of temporal proximity and other evidence — not temporal proximity
only — could give rise to an inference of causation sufficient to
withstand summary judgment. Id.
This holding is consistent with earlier Maine cases.
See, e.g., Stanley, 864 A.2d at 174-77 (upholding summary judgment
for employer even though employee was terminated "a short time
after" making his complaint); Doyle v. Dept. of Human Servs., 824
A.2d 48, 56 (Me. 2003) (upholding summary judgment for employer
notwithstanding "close proximity" between protected activity and
adverse employment action); DiCentes v. Michaud, 719 A.2d 509,
514-15 (Me. 1998) (acknowledging that close temporal proximity
between protected activity and adverse employment action does not
end the matter). It is also consistent with federal case law.
See, e.g., Murray, 789 F.3d at 26; Mariani-Colon v. Dep't of
Homeland Sec., 511 F.3d 216, 224 (1st Cir. 2007); Kearney, 316
F.3d at 23. Finally, it is consistent with the way in which WPA
retaliation cases are litigated under Maine law: on a "summary
judgment motion — just as at trial — the employee must not only
produce evidence that she engaged in protected activity and later
suffered an adverse employment action, but in the first instance
she must also produce some evidence of the employer's unlawful
motivation." Brady, 126 A.3d at 1156. If the employer puts forth
- 19 -
evidence of a legitimate non-retaliatory reason, the employee must
adduce some evidence that the employer's proffered reason is
Next, Theriault argues that there was evidence in the
record from which a jury could find her employer's stated reasons
for firing her pretextual. This argument amounts to nothing more
than a post-hoc rationalization.
A plaintiff may show pretext by establishing
"weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer's proffered legitimate reasons" for
the challenged employment action. Cookson v. Brewer Sch Dept.,
974 A.2d 276, 282 (Me. 2009) (quoting Billings v. Town of Grafton,
515 F.3d 39, 55-56 (1st Cir. 2008)); see Trott v. H.D. Goodall
Hosp., 66 A.3d 7, 15 (Me. 2013). Here, Theriault asserts that
even if she grabbed the resident by the front of his shirt, the
incident would not have amounted to abuse and, thus, could not
have justified RiverRidge's decision to cashier her. She reasons
that because a trier of fact could conclude that the incident did
not amount to abuse, the trier likewise could conclude that
RiverRidge's claim that it dismissed her based on the incident was
Leaving to one side the fact that the "shaking" incident
was not the sole reason for Theriault's dismissal, there is
something to be said for Theriault's premise. As Theriault
- 20 -
suggests, the evidence may be such as to create a factual dispute
about whether patient abuse actually occurred. But the conclusion
that Theriault would have us draw from this premise — that a
finding of pretext would likewise be permissible — does not follow.
"[E]vidence of a decisionmaker's mistaken judgment is not
dispositive of the question of pretext unless that evidence would
permit the factfinder to conclude that the stated
nondiscriminatory justification for the adverse employment action
was either knowingly false or made in bad faith." Murray, 789
F.3d at 27; see Fuhrmann v. Staples Office Superstore E., 58 A.3d
1083, 1093 (Me. 2012). There is nothing in the summary judgment
record that would allow a factfinder to conclude that the decision
to fire Theriault for perceived misconduct was either knowingly
false or undertaken in bad faith. Theriault admits that she
grabbed the resident by the shirt (although she claims that she
did so to prevent him from falling). Other witnesses, though,
reported that it appeared to them that Theriault had grown
frustrated with the resident and had grabbed his shirt to shake
him. There is not a shred of evidence that would support an
inference that RiverRidge acted inappropriately in resolving this
conflict by crediting the account of a neutral witness (Vasquez).7
7 Indeed, Theriault herself does not contend that Vasquez
lied. She only contends that Vasquez mis-judged the intent behind
Theriault's actions.
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Theriault cannot make out a genuine issue of material fact with
respect to pretext simply by challenging the "objective veracity"
of an employer's conclusions. Morgan v. Mass. Gen. Hosp., 901
F.2d 186, 191 (1st Cir. 1990).
It is true, of course, that DHHS eventually concluded
that no patient abuse occurred. It does not follow, though, that
RiverRidge acted in bad faith in concluding that Theriault's
actions were inappropriate. Theriault has identified no facts
that contradict Genesis's basic defense: that RiverRidge
administrators conducted an investigation into the allegations of
misconduct made against Theriault, found those allegations to be
substantiated in material part, and based the decision to terminate
her employment on that finding. See Kearney, 316 F.3d at 23
(attributing decretory significance to employee's failure to
discredit employer's investigative process).
If more were needed — and we doubt that it is — Moore's
request for authorization to discharge Theriault also cited
Theriault's inappropriate comments, which threatened harm to
residents. The comments themselves are jarring. Theriault once
asked a nurse for a gun "to handle" a resident; on another
occasion, she asked for a baseball bat to use on a different
resident; and on yet a third occasion, she told a resident's family
that she had a "noose and a bucket" ready for his use. Theriault
attempts to minimize these statements by saying that they were
- 22 -
made in jest and, thus, could not have grounded a good-faith
decision to fire her.
Theriault's appraisal is incorrect. It is common ground
that inappropriate statements may constitute a basis on which to
terminate an employee even if supposedly made in jest. See Pina
v. Children's Place, 740 F.3d 785, 797 (1st Cir. 2014). Words can
be hurtful, see, e.g., Franchina v. City of Providence, 881 F.3d
32, 37 (1st Cir. 2018), and a speaker's demurrer that she was "just
kidding" does not lessen the harm that inappropriate statements
may have caused, see Pina, 740 F.3d at 797. Here, for example,
Wagner reported that Theriault's "noose and a bucket" statement,
when uttered, was very upsetting to the resident's family.
Although Theriault may have thought these comments humorous, she
has adduced no evidence to suggest that RiverRidge acted in bad
faith when it found them far out of line and determined that the
comments, together with the shaking incident, warranted
Theriault's dismissal.
Theriault's final argument rests on a claim of disparate
treatment: she posits that the fact that she was terminated and
Wagner was not is sufficient to ground an inference of pretext.
In support, she cites cases holding that pretext may be inferred
from proof that similarly situated employees were treated
differently. See, e.g., Murray, 789 F.3d at 27; Conward v.
Cambridge Sch. Comm., 171 F.3d 12, 20 (1st Cir. 1999). The rub,
- 23 -
however, is that a jury could not find Theriault and Wagner to
have been similarly situated.
The relevant question is whether a reasonable person,
looking objectively at the two incidents, would think them roughly
equivalent and the two employees similarly situated. See Ray v.
Ropes & Gray LLP, 799 F.3d 99, 114 (1st Cir. 2015). Wagner was
accused of texting on her cell phone while distributing
medications; Theriault was accused of shaking a resident and making
inappropriate comments about inflicting harm on residents. The
allegations against Wagner were made by Theriault, denied by
Wagner, not corroborated by any third party, investigated by the
employer, and found to be apocryphal. By contrast, the allegations
against Theriault, though originally made by Wagner, were
confirmed by the employer's investigation, largely admitted by
Theriault, and corroborated in part by a neutral party (Vasquez).
Comparing these two situations is like comparing eels to elephants
— there are many more differences than similarities. See Morgan,
901 F.2d at 191. Thus, the fact that Wagner's employment continued
while Theriault's did not does not aid Theriault's quest to prove
that RiverRidge's stated reasons for her termination were
To sum up, Theriault has attempted to discredit her
employer's stated reasons for terminating her, but she has not
succeeded in impugning them. "Casting aspersions is not enough."
- 24 -
Murray, 789 F.3d at 27. As both the Law Court and this court
agree, "an employee's assertion of . . . animus on the part of an
employer will not survive summary judgment if she or he relies on
mere 'conclusory allegations, improbable inferences, and
unsupported speculation.'" Cookson, 974 A.2d at 283 (quoting
Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218
F.3d 1, 5 (1st Cir. 2000)). RiverRidge's reasons have remained
plausible, consistent, and coherent. The mere fact that Theriault
made a complaint about Wagner shortly before Theriault's ouster
does not shield her from the consequences of her own actions. See
Blackie v. Maine, 75 F.3d 716, 723-24 (1st Cir. 1996) (explaining
that "by engaging in a protected activity, an employee does not
acquire immunity from the same risks that confront virtually every
other employee every day in every work place"). On this record,
Theriault has pointed to no significantly probative evidence
adequate to support a finding that a causal connection existed
between her protected activity and her dismissal.
We summarize succinctly. The district court faithfully
followed the teachings of the Law Court, applied that court's new,
Maine-specific retaliation paradigm to Theriault's WPA retaliation
claim, and granted summary judgment in favor of Genesis. Bearing
in mind that the issue of whether the McDonnell Douglas framework
applies to a WPA retaliation claim in a diversity case is not
- 25 -
before us, see supra note 4, we discern no error either in the
district court's analysis or in its evaluation of the summary
judgment record.
We need go no further. The entry of summary judgment in
favor of Genesis is

Outcome: Affirmed.

Plaintiff's Experts:

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